What Legal Protection Do You Have Against LPA Abuse?
Multiple layers of legal safeguards exist to prevent and respond to abuse of a Lasting Power of Attorney — from the moment it is created through to court intervention.
Written by Anthony Dalton · Reviewed by James Tyrrell · Last reviewed
The law provides extensive legal protection against LPA abuse through a combination of safeguards built into the creation process, ongoing oversight by the Office of the Public Guardian, and enforcement powers held by the Court of Protection and the criminal courts. If you are concerned about how an attorney is using — or might use — a Lasting Power of Attorney, the system has multiple ways to step in.
At a glance
- The Mental Capacity Act 2005 provides the legal framework for protecting donors from LPA abuse
- Safeguards operate at three stages: creation (certificate provider, people to notify), during use (OPG investigations, best interests duty), and through court intervention
- The Court of Protection can remove attorneys, revoke LPAs, freeze accounts, and order repayment of misappropriated funds
- Criminal prosecution under the Theft Act 1968 or Fraud Act 2006 is possible where abuse amounts to a criminal offence
- This guide applies to LPAs made under the law of England and Wales
Protections Built Into the LPA at Creation
The first line of defence against LPA abuse starts before the document is even registered. Several safeguards are designed to ensure the donor genuinely understands what they are signing and is not being coerced.
The certificate provider
Every LPA must include a certificate provider — an independent person who confirms that the donor understands the nature and scope of the LPA, and that nobody is pressuring them into making it. This person must have known the donor personally for at least two years, or be a professional such as a solicitor, doctor, or social worker. They cannot be a named attorney or a family member of an attorney.
People to notify
The donor can name up to five “people to notify” when the LPA is sent for registration. These individuals receive a formal notification and have a window to raise objections with the Office of the Public Guardian (OPG) if they believe there is a problem — for example, that the donor lacked mental capacity or was being pressured. This acts as an early warning system.
OPG registration checks
The OPG reviews every LPA application before registration. It checks that the form has been completed correctly, that the certificate provider is independent, and that no valid objections have been raised. While the OPG cannot assess the donor’s capacity in detail at this stage, it does act as a gatekeeper to filter out obviously flawed or suspicious applications.
Protections During Use of the LPA
Once an LPA is registered and in use, several legal duties and oversight mechanisms apply to the attorney.
The best interests duty
Section 4 of the Mental Capacity Act 2005 requires attorneys to act in the donor’s best interests at all times. This is not a vague principle — it is a statutory obligation. The attorney must consider the donor’s past and present wishes, consult relevant people, and take the least restrictive option available. Our guide on how attorneys must act in your best interests explains these duties in full.
Criminal law protections
An attorney who steals from or defrauds the donor commits a criminal offence. The Theft Act 1968 covers straightforward theft of the donor’s money or property. The Fraud Act 2006 covers dishonest abuse of a position of trust — which is precisely what an attorney’s role is. Depending on the circumstances, conviction may result in a custodial sentence. Section 44 of the Mental Capacity Act also makes it a criminal offence to wilfully neglect or ill-treat a person who lacks capacity.
OPG investigation powers
Under Section 58 of the Mental Capacity Act, the OPG has formal powers to investigate concerns about how an attorney is exercising their authority. The OPG can require the attorney to produce financial records and accounts, send a Court of Protection Visitor to meet the donor and assess the situation, and refer serious cases to the Court of Protection. Anyone can raise a concern with the OPG — family members, friends, neighbours, care workers, or professionals such as bank staff. See our guide on how to report an attorney misusing an LPA for the steps involved.
Key point: You do not need to be a family member or have a formal legal standing to report concerns about an attorney to the OPG. Anyone who suspects abuse can contact them.
Protections Through How You Design the LPA
Donors can build additional safeguards into the LPA itself. These design choices can significantly reduce the risk of abuse.
- Joint attorneys — appointing attorneys to act “jointly” means they must all agree on every decision, which prevents a single attorney from acting alone. “Jointly and severally” gives more flexibility but still means each attorney can be held individually accountable
- Restrictions and conditions — the donor can include specific restrictions in the LPA, such as requiring the attorney to keep accounts, limiting the value of gifts the attorney can make, or preventing the sale of a particular property without specific consent
- Preferences — while not legally binding in the same way as restrictions, preferences provide clear guidance on the donor’s wishes, making it harder for an attorney to claim they were acting in the donor’s interests when doing something the donor explicitly did not want
- Replacement attorneys — naming a replacement attorney means that if an original attorney is removed or steps down, someone can take over without the delay and cost of a Court of Protection application
- Record-keeping — encouraging (or requiring) the attorney to keep detailed records of all financial transactions and decisions creates a clear audit trail that can be reviewed if concerns arise later
What the Court of Protection Can Do
The Court of Protection is the specialist court that handles cases involving people who lack mental capacity. Under Section 22 of the Mental Capacity Act, it has wide-ranging powers to intervene where an LPA is being abused.
- Remove the attorney — the court can remove an attorney who has behaved in a way that contravenes their authority or is not in the donor’s best interests
- Revoke the LPA — in serious cases, the court can revoke the entire LPA so it has no further legal effect
- Appoint a deputy — if the LPA is revoked and the donor lacks capacity, the court can appoint a professional or family deputy to manage the donor’s affairs going forward
- Freeze bank accounts — in urgent cases, the court can make interim orders to freeze accounts and prevent further financial harm while the case is investigated
- Order repayment — the court can order the attorney to repay money that has been misappropriated, and may award costs against the attorney
- Issue directions — the court can give specific directions about how the attorney should (or should not) exercise their powers
In urgent situations, the court can act quickly. Our guide on emergency Court of Protection orders explains how interim orders can be made within days under Section 48 of the Mental Capacity Act.
The Role of Banks and Financial Institutions
Banks are often the first to spot potential LPA abuse. Most major banks have dedicated teams trained to recognise suspicious activity on accounts operated under a power of attorney. They look for things like large, unexplained withdrawals, sudden changes in spending patterns, or transfers to the attorney’s personal accounts.
If a bank suspects abuse, it can refuse to carry out a transaction, freeze the account temporarily, report the concern to the OPG, and refer the matter to its internal safeguarding team or the local authority. Banks do not have a legal obligation to accept every instruction from an attorney — if they have reasonable grounds to suspect the attorney is acting outside their authority or not in the donor’s best interests, they can and should intervene.
The Role of Adult Social Services
Local authority Adult Social Services teams have a statutory duty under the Care Act 2014 to investigate safeguarding concerns involving adults at risk. If a social worker, carer, or healthcare professional suspects that a donor is being abused or neglected by their attorney, they can raise a safeguarding alert.
The local authority can carry out a safeguarding enquiry, coordinate with the OPG and the police, and put protective measures in place while the situation is investigated. In practice, the OPG and local authorities frequently work together on LPA abuse cases, sharing information and coordinating their responses.
How to Report Concerns About LPA Abuse
If you suspect an attorney is abusing their powers under an LPA, there are several routes to report it. The right route depends on the nature and urgency of the concern.
Contact the OPG
The Office of the Public Guardian is the primary body for reporting concerns about attorneys. You can call, email, or write to them. They will assess the concern and decide whether to investigate. See our full guide on reporting an attorney misusing an LPA.
Contact Adult Social Services
If you believe the donor is at immediate risk of harm or neglect, contact the safeguarding team at your local authority. They have a legal duty to investigate under the Care Act 2014.
Contact the police
If the abuse amounts to a criminal offence — such as theft, fraud, or physical abuse — report it to the police. In an emergency, always call 999.
Notify the donor's bank
If you suspect financial abuse, contact the bank or building society where the donor’s accounts are held. They can freeze accounts and investigate suspicious transactions.
What Happens If the Donor Still Has Capacity
If the donor still has mental capacity, they are in the strongest position to act. A donor with capacity can revoke their LPA at any time by completing a deed of revocation and notifying the OPG. They can also remove a specific attorney and create a new LPA with different attorneys if they wish.
The situation is more difficult when the donor has lost capacity. In that case, they cannot revoke the LPA themselves, and it falls to concerned family members, professionals, or the OPG to apply to the Court of Protection. This is one reason why building safeguards into the LPA from the start is so valuable — it provides protection even when the donor can no longer act for themselves.
Key point: If you are creating an LPA and want to maximise protection, consider appointing joint attorneys, naming people to notify, including clear restrictions, and using a professional service to ensure the document is properly drafted. See our pricing page for more details.
Key Takeaways
- Multiple layers of protection exist — safeguards operate at the creation stage, during the LPA’s use, and through court intervention when abuse is discovered
- The OPG can investigate under Section 58 MCA — anyone can report concerns, and the OPG can require attorneys to produce records and send Visitors to assess the situation
- The Court of Protection has extensive powers — it can remove attorneys, revoke LPAs, freeze accounts, appoint deputies, and order repayment of misappropriated funds
- Criminal prosecution is a real possibility — attorneys who steal from or defraud the donor may face charges under the Theft Act 1968 or Fraud Act 2006
- Design your LPA with safeguards in mind — joint attorneys, people to notify, restrictions, and replacement attorneys all reduce the risk of abuse going unchecked
- Banks and social services are additional safety nets — financial institutions can freeze accounts and local authorities have safeguarding duties under the Care Act 2014
Common Questions About Legal Protection Against LPA Abuse
What can the Court of Protection do if an attorney abuses an LPA?
The Court of Protection can remove the attorney, revoke the LPA entirely, freeze the donor’s bank accounts, appoint a deputy to take over, and order the attorney to repay any misappropriated funds. In urgent cases, the court can make interim orders within days under Section 48 of the Mental Capacity Act 2005.
Can an attorney face criminal charges for LPA abuse?
Yes. An attorney who steals from or defrauds the donor may face prosecution under the Theft Act 1968 or the Fraud Act 2006. Depending on the circumstances, this could result in a custodial sentence. The OPG or concerned individuals can report suspected criminal conduct to the police.
How does the OPG protect donors from attorney abuse?
The Office of the Public Guardian has powers under Section 58 of the Mental Capacity Act to investigate concerns about attorneys. It can require attorneys to produce records, send Court of Protection Visitors to assess the situation, and refer serious cases to the Court of Protection for formal action.
What protections are built into the LPA at the time it is created?
Several safeguards exist at the creation stage. A certificate provider must confirm the donor understands the LPA and is not under pressure. Named persons to notify are given a chance to object before registration. The donor can also appoint joint attorneys, include restrictions and conditions, and name replacement attorneys.
This guide was last reviewed and updated on . Information is based on current legislation and OPG guidance for England and Wales.
Official Guidance
Further reading from GOV.UK
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